Preview
FILED: KINGS COUNTY CLERK 09/05/2018 01:00 PM INDEX NO. 510635/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/05/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---- x
BIG BANG ERP, INC.,
Plaintiff, AFFIRMATION
-against-
MEADOWS OFFICE SUPPLY CO., INC., Index No. 510635/2018
Defendant.
--- ------------------- ------x
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
Richard H. Del Valle, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the following to be true under the penalties of perjury:
1. I am a partner in the firm of Siegel & Reiner, LLP, attorneys for the Defendant
herein.
2. I make this affirmation in support of the within motion for an order:
(i) Changing the place of trial under CPLR 510 and 511; and
(ii) for such other, further, and different relief that the Court deems just,
proper, and equitable.
PROCEDURAL HISTORY
3. Upon information and belief, the Plaintiff commenced this action on May 23,
2018 by the purchase of an index number and the filing of a Summons and
Verified Complaint. A copy of the Summoñs and Verified Complaint is annexed
hereto as Exhibit A.
4. On July 20, 2018, the Defendant filed a Verified Answer with Counterclaim.
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Also on July 20, 2018, the Defendant filed a Demand for Change of Place of
Trial. A copy of the Verified Answer with Counterclaim and a copy of the
Demand for Change of Place of Trial are annexed hereto as Exhibit B and
Exhibit C respectively.
5. The Plaintiff failed to respond to the Demand for Change of Place of Trial within
the time required under CPLR 511(b); accordingly, the Defendant is entitled to
bring this motion.
D_EFENDANT'S MOTION FOR CHANGE OF PLACE OF TRIAL
6. The issue before this Court is whether the Plaintiff properly commenced this action in
Kings County, New York or whether this action must be transferred, or re-commenced, in
New York County, New York.
7. Under CPLR 510(1), "[t]he court... may change the place of trialof an action where: 1. the
county;..."
county designated for that purpose is not a proper
8. Here, the Plaintiff improperly designated Kings County as the place for trial.
9. As set forth on the Defendant's corporate certificate (the "Corporate Certificate"), on file
with the New York Secretary of State, the Defendant officially lists itsprincipal office at
885 Third Avenue, New York, New York and is thus deemed a resident of New York
County for venue purposes. (S_ee, CPLR 503(c)) A copy of Defendant's Corporate
Certificate is hereto as Exhibit D.
10. Conversely, the Plaintiff, Big Bang ERP, Inc., is a Canadian corporate entity and is,upon
information and belief, unlicensed in New York State. In this regard, itis worth noting
that the Summons and Complaint (Exhibit A) lists the Plaintiff's Canadian address and,
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FILED: KINGS COUNTY CLERK 09/05/2018 01:00 PM INDEX NO. 510635/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/05/2018
more important, fails to even allege that itis licensed to do business in the State of New
York.
11. Under the above-described circumstances, it is respectfully requested that the Court order
a change of place of trial based on the Defendant's residence in New York County and the
fact that the Plaintiff is evidently unlicensed to do business in the State of New York.
12. Parenthetically, itshould noted that the Defendant has asserted an Affirmative Defense
based on Business Corporation Law §1312(a) in its Answer (Exhibit B), but is not moving
on that ground at this time because ithas not yet ascertained whether the Plaintiff's
"business activities in New York were not just casual or occasional, but so systematic and
jurisdiction."
regular as to manifest continuity of activity in the (See, Highfill, Inc. v.
(2nd
Bruce and Iris,Inc., 50 A.D. 3d 742,743, 855 N.Y.S. 2d 635 Dept.) If diSCOVery
reveals that the Plaintiff's business activities meet this threshold, the Defendant will move
accordingly.
13. The Plaintiff will not be prejudiced by the relief sought in this cross motion in that (i)there
has been no document production requested by either party, (ii)the depositions of the
parties have not yet been taken, and (iii)the Plaintiff, upon information and belief,
maintains its principal place of business in Canada.
14. Based on the foregoing, the within action must be transferred to New York County or, in
the alternative, dismissed without prejudice with leave to re-conuñence the action in the
proper venue.
WHEREFORE, the Defendant, Meadows Office Supply Co., Inc., respectfully requests that the
Court grant the within motion along with such other, further, and different relief that the Court deems
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just, proper, and equitable.
Dated: New York, New York
August 15, 2018
Richard . Del Valle, Esq.
Siegel & Reiner, LLP
Attorneys for Defendant
59th 12th
130 East Street, FlOOr
New York, New York 10022
(646) 475-2805
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Preview
FILED: KINGS COUNTY CLERK 09/05/2018 01:00 PM INDEX NO. 510635/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---- x BIG BANG ERP, INC., Plaintiff, AFFIRMATION -against- MEADOWS OFFICE SUPPLY CO., INC., Index No. 510635/2018 Defendant. --- ------------------- ------x STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) Richard H. Del Valle, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am a partner in the firm of Siegel & Reiner, LLP, attorneys for the Defendant herein. 2. I make this affirmation in support of the within motion for an order: (i) Changing the place of trial under CPLR 510 and 511; and (ii) for such other, further, and different relief that the Court deems just, proper, and equitable. PROCEDURAL HISTORY 3. Upon information and belief, the Plaintiff commenced this action on May 23, 2018 by the purchase of an index number and the filing of a Summons and Verified Complaint. A copy of the Summoñs and Verified Complaint is annexed hereto as Exhibit A. 4. On July 20, 2018, the Defendant filed a Verified Answer with Counterclaim. 1 of 4 FILED: KINGS COUNTY CLERK 09/05/2018 01:00 PM INDEX NO. 510635/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/05/2018 Also on July 20, 2018, the Defendant filed a Demand for Change of Place of Trial. A copy of the Verified Answer with Counterclaim and a copy of the Demand for Change of Place of Trial are annexed hereto as Exhibit B and Exhibit C respectively. 5. The Plaintiff failed to respond to the Demand for Change of Place of Trial within the time required under CPLR 511(b); accordingly, the Defendant is entitled to bring this motion. D_EFENDANT'S MOTION FOR CHANGE OF PLACE OF TRIAL 6. The issue before this Court is whether the Plaintiff properly commenced this action in Kings County, New York or whether this action must be transferred, or re-commenced, in New York County, New York. 7. Under CPLR 510(1), "[t]he court... may change the place of trialof an action where: 1. the county;..." county designated for that purpose is not a proper 8. Here, the Plaintiff improperly designated Kings County as the place for trial. 9. As set forth on the Defendant's corporate certificate (the "Corporate Certificate"), on file with the New York Secretary of State, the Defendant officially lists itsprincipal office at 885 Third Avenue, New York, New York and is thus deemed a resident of New York County for venue purposes. (S_ee, CPLR 503(c)) A copy of Defendant's Corporate Certificate is hereto as Exhibit D. 10. Conversely, the Plaintiff, Big Bang ERP, Inc., is a Canadian corporate entity and is,upon information and belief, unlicensed in New York State. In this regard, itis worth noting that the Summons and Complaint (Exhibit A) lists the Plaintiff's Canadian address and, 2 2 of 4 FILED: KINGS COUNTY CLERK 09/05/2018 01:00 PM INDEX NO. 510635/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/05/2018 more important, fails to even allege that itis licensed to do business in the State of New York. 11. Under the above-described circumstances, it is respectfully requested that the Court order a change of place of trial based on the Defendant's residence in New York County and the fact that the Plaintiff is evidently unlicensed to do business in the State of New York. 12. Parenthetically, itshould noted that the Defendant has asserted an Affirmative Defense based on Business Corporation Law §1312(a) in its Answer (Exhibit B), but is not moving on that ground at this time because ithas not yet ascertained whether the Plaintiff's "business activities in New York were not just casual or occasional, but so systematic and jurisdiction." regular as to manifest continuity of activity in the (See, Highfill, Inc. v. (2nd Bruce and Iris,Inc., 50 A.D. 3d 742,743, 855 N.Y.S. 2d 635 Dept.) If diSCOVery reveals that the Plaintiff's business activities meet this threshold, the Defendant will move accordingly. 13. The Plaintiff will not be prejudiced by the relief sought in this cross motion in that (i)there has been no document production requested by either party, (ii)the depositions of the parties have not yet been taken, and (iii)the Plaintiff, upon information and belief, maintains its principal place of business in Canada. 14. Based on the foregoing, the within action must be transferred to New York County or, in the alternative, dismissed without prejudice with leave to re-conuñence the action in the proper venue. WHEREFORE, the Defendant, Meadows Office Supply Co., Inc., respectfully requests that the Court grant the within motion along with such other, further, and different relief that the Court deems 3 3 of 4 FILED: KINGS COUNTY CLERK 09/05/2018 01:00 PM INDEX NO. 510635/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/05/2018 just, proper, and equitable. Dated: New York, New York August 15, 2018 Richard . Del Valle, Esq. Siegel & Reiner, LLP Attorneys for Defendant 59th 12th 130 East Street, FlOOr New York, New York 10022 (646) 475-2805 4 of 4